Prafulla C. Pant, J.— This appeal is directed against the judgment and order dated 30-6-2014 2014 SCC OnLine Guj 7519 passed by the High Court of Gujarat whereby the said Court has partly allowed the criminal appeals arisen out of Sessions Case No. 85 of 2003 and Cross-Sessions Case No. 53 of 2004, which were decided by two separate orders of the same date i.e. 5-10-2007 by the Additional Sessions Judge/Fast Track Court, Junagarh.
2. We have heard the learned counsel for the parties and perused the record.
3. The prosecution story, in brief, is that complainant Satish Jotva (PW 42) used to live with his family in Village Arena:
3.1. On 2-9-2003 his uncle Bhurabhai Jivabhai (PW 46) was going to his field on a bicycle. At about 10.30 a.m., he was intercepted by Pathubha Govindji Rathod (Appellant 1) near bus-stand. Appellant 1-accused picked up a quarrel with Bhurabhai Jivabhai as to why he supported Natha Nagabhai (one of the deceased) in Gram Panchayat Election with whom Appellant 1-accused was not having cordial relations. Meanwhile Natha Nagabhai came there and joined Bhurabhai Jivabhai in the quarrel. This led heated exchange of words between both the sides, and the crowd gathered there.
3.2. Appellant 1-accused was joined by his other supporters (co-accused), who were armed with deadly weapons like swords, knives and sticks. Out of the accused persons, accused Pathubha Govindji was armed with revolver, and accused Bhavubhai Gagubhai, Bhuraji Gaguji, Kirit Jesing and Punjaji Muluji were armed with swords. Accused Mala Gaguji was armed with knife. Rest of the accused Gaguji Manji, Gomubha Halarwadi, Navalsinh Motisinh, Kanubha Jesangji, Dhiru Jesing, Kiritsinh Punjajai, Veraji Punjaji, Jayubha, Samatsinh, Sidharajsinh Manji, Bharat Manji, Kanu Bhai Devubhai and Appellant 2-accused, Hemubha Govindji were armed with sticks.
3.3. On hearing the noise, complainant Satish Jiva Jotva (PW 42) and his another uncle Bhimshi Jiva (PW 47), father of the complainant Hamir Nagabhai (another deceased), Malde Nagabhai (PW 43), Bhurabhai Jivabhai (PW 46), Punjabhai Bhimshibhai (PW 44), Jagmal Jivabhai (PW 45) and some other villagers also gathered there.
3.4. When the quarrel further got aggravated between the two sides, Appellant 1-accused Pathubha Govindji exhorted his supporters to kill Natha Nagabhai and teach lesson to other supporters. Thereafter, Appellant 1-accused Pathubha Govindji himself took out the revolver from his pocket and fired at him. Natha Nagabhai suffered bullet injuries on the stomach and fell down. In the incident, Bhimshibhai who was attacked with sword suffered injury on his head. Bhavubhai Gagubhai assaulted Punja Bhimshi with sword on his hand, and he also suffered injury on his head. Punjaji gave blow to Bharat Jiva on his head, Gomubha Halarwala gave blow on the head of Jagmal Jiva. Appellant 2-accused Hemubha Govindji inflicted injury with sword on the head of Hamir Nagabhai. Accused Malde Nagabhai Jotva assaulted with stick to some other persons. Several persons suffered injuries in the incident on both sides.
3.5. According to the prosecution, after the incident the complainant took his uncle Natha Nagabhai on his motorcycle to Mangrol Government Hospital, and other injured persons were also taken in rickshaw to the said hospital for medical treatment. Out of the injured, Natha Nagabhai, Bhimshi Jivabhai, Hamir Nagabhai, Bhura Jivabhai, Malde Nagabhai, Punjabhai Bhimshibhai, Jagmal Jivabhai were shifted to Junagarh Hospital for further treatment. In the incident Natha Nagabhai and Hamir Nagabhai succumbed to the injuries and died.
4. A complaint was given by Satish Jiva Jotva regarding the incident on the basis of which ICR No. 70 of 2003 was registered at Mangrol Police Station. A cross-version of the incident (ICR No. 71 of 2003) was also registered by the police. After investigation, charge-sheets were filed by the police against both sets of the accused. Sessions Trial No. 85 of 2003 relates to the charge-sheet filed against the appellant-accused Pathubha Govindji Rathod and Hemubha Govindji Rathod and eighteen others. After hearing the parties in the aforesaid sessions case, a charge was framed by the trial court against all the twenty accused in respect of the offences punishable under Sections 147, 148, 302 read with Section 149, Section 307 read with Section 149, Section 326 read with Section 149, Section 325 read with Section 149, Section 324 read with Section 149 and Section 506(2) read with Section 149 of the Penal Code, 1860 and under Section 135 of the Bombay Police Act. Appellant 1-accused Pathubha Govindji was further charged in respect of the offence punishable under Section 25(1)(a) and Section 27 of the Arms Act. All the accused pleaded not guilty and claimed to be tried.
5. On this, the prosecution got examined PW 1 Dr M.G. Satrodiya, PW 2 Dr Linesh Makwana, PW 3 Dr Anil Sakhiyani, PW 4 Naran Punja, PW 5 Desha Devshi, PW 6 Nasinghbhai Nensibhai, PW 7 Parsottambhai Savjibhai, PW 8 Ratibhai Khimjibhai, PW 9 Nagabhai Hirabhai, PW 10 Virambhai Kanabhai, PW 11 Hardas Desa, PW 12 Arjan Govindbhai, PW 13 Vikram Arjanbhai, PW 14 Bhikhabhai Virabhai, PW 15 Mansukh Amarsinh, PW 16 Lakhabhai Pethabhai, PW 17 Laxmanbhai Makwana, PW 18 Rasulkhan Gulamkhan, PW 19 Razak Ismail, PW 20 Hanif Ibrahim, PW 21 Ali Giga, PW 22 Ismail Hussain, PW 23 Gova Parbat, PW 24 Kanjibhai Karsanbhai, PW 25 Hasmukh Raja, PW 26 Karmanbhai Jethabhai, PW 27 Arjan Parbat, PW 28 Musabhai Allarakha, PW 29 Amadbhai Musabhai, PW 30 Dhirubhai Naranbhai, PW 31 Mohanlal Khimjibhai, PW 32 Mamadbhai Ismail, PW 33 Ibrahim Kasam, PW 34 Atul Prabhudas, PW 35 Dr Jigna Dave, PW 36 Dr Kartik Modha, PW 37 Bhanji Vashram, PW 38 Ranchhodbhai Rathod, PW 39 Dr Bhalchandra Joshi, PW 40 Dr Jitendra Gajera, PW 41 Dr P.B. Nariyani, PW 42 Satishbhai Bhimsinh Jothwa (complainant), PW 43 Malde Naga (injured), PW 44 Punjabhai Bhimshibhai (injured), PW 45 Jagmal Jivabhai, PW 46 Bhurabhai Jivabhai (injured), PW 47 Bhimsinhbhai Jivabhai (injured), PW 48 Chandrakant Natwarlal, PW 49 Mahipatbhai Bhikhubha, PW 50 Ravjibhai Valjibhai, PW 51 Jayeshbhai Tapubhai, PW 52 Karsanbhai Gangabhai, PW 53 Subhashbhai Vadhera, PW 54 Hasmukhlal Aahir, PW 55 Arjanbhai Meraman, PW 56 Harishchandra Trivedi, PW 57 Bharatbhai Mistri, PW 58 Vishnukumar Vyas, PW 59 Manharlal Mehta (Investigating Officer) and PW 60 Kalekhan Kureshi (Investigating Officer).
6. The trial court put oral evidence of the above witnesses and documentary evidence including medical reports, inquest reports, post-mortem reports of Natha Nagabhai and that of Hamirbhai Nagabhai, complaint, serologist report and chemical analyst report to the accused under Section 313 CrPC. In reply to the prosecution evidence, the accused stated that the evidence adduced against them is incorrect. It is also pleaded that it were the accused, who were attacked by the complainant and his supporters. In defence, it was brought on record that serious injury was caused by Hamir Naga (deceased) to Appellant 1-accused Pathubha Govindji, with a knife. It is also brought on record that from the side of the appellant-accused Gumansinh Motibha, Juvan Singh Gogubha, Punjaji Muluji, Navalsinh, Pathubha (present Appellant 1) and Punja Bhimshi suffered injuries. It is also established that in Cross-Sessions Case No. 53 of 2004, witnesses of the present case, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai Jotva, Jagmal Jivabhai Jotva, Bhurabhai Jivabhai Jotva, Punjabhai Bhimshibhai Jotva are accused, who assaulted the accused of the present case. Due to death of Hamir Naga, his name did not figure in the charge-sheet as an accused in the said sessions case.
7. After hearing the parties, the learned Sessions Judge decided both the sessions trials by two separate orders of the same date and recorded conviction against the accused in both the cross-cases. In Sessions Case No. 53 of 2004 the five accused, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai Jotva, Jagmal Jivabhai Jotva, Bhurabhai Jivabhai Jotva, Punjabhai Bhimshibhai Jotva were convicted by the trial court under Sections 323, 324, 325, 147, 148 all read with Section 149 of the Penal Code and under Section 135 of the Bombay Police Act. Each one of the accused in the said Sessions Case No. 53 of 2004 was sentenced to undergo five years' simple imprisonment and to pay a fine of Rs 2500 under Section 326 read with Section 149 IPC, simple imprisonment for a period of one month and to pay a fine of Rs 1000 under Section 324 read with Section 149 IPC, simple imprisonment for a period of three months and to pay a fine of Rs 500 under Section 147 read with Section 149 IPC, simple imprisonment for a period of one year and to pay a fine of Rs 1000 under Section 325 read with Section 149 IPC, simple imprisonment for a period of one year and to pay a fine of Rs 1000 under Section 148 read with Section 149 IPC.
8. On the other hand, in Sessions Case No. 85 of 2005 in which the present appellants were accused, the trial court convicted and sentenced each of the twenty accused under Sections 302, 307, 326, 325 and 324 all read with Section 149 IPC, to undergo imprisonment for life and to pay a fine of Rs 5000 under Section 302 read with Section 149 IPC, imprisonment for seven years and directed to pay a fine of Rs 2500 under Section 307 read with Section 149 IPC, imprisonment for a period of five years and directed to pay a fine of Rs 2500 under Section 326 read with Section 149 IPC. Similar sentence was passed against each of them under Section 325 read with Section 149 IPC. As to the offence under Section 324 read with Section 149 IPC each one was sentenced to imprisonment for one year and directed to pay a fine of Rs 1000. Similar sentence was passed under Section 147 read with Section 149 IPC. On the count of charge of the offence punishable under Section 148 read with Section 149 IPC each one of the twenty accused was sentenced to imprisonment for a period of one year and directed to pay a fine of Rs 1000. Under Section 506 read with Section 149 IPC, the trial court sentenced each convict to imprisonment for a period of seven years and directed to pay a fine of Rs 1000. The trial court further convicted Appellant 1-accused Pathubha Govindji under Section 27 of the Arms Act, and sentenced him to imprisonment for a period of three years and directed to pay a fine of Rs 2500.
9. Criminal Appeals Nos. 1391 and 1394 of 2007 were filed by the convicts of Sessions Case No. 85 of 2003 and Criminal Appeal No. 1244 of 2007 was filed by the convicts of Sessions Case No. 53 of 2004, before the High Court. All the three appeals were decided by the High Court by a common judgment challenged before us.
10. The High Court decided three appeals with following directions: (Pathubha Govindji Rathod case 2014 SCC OnLine Guj 7519, SCC OnLine Guj para 26)
“26. For the foregoing reasons, the following order is passed:
(I) All the three appeals are partly allowed.
(II) Insofar as Criminal Appeals Nos. 1391 and 1394 of 2007 are concerned, the judgment and order passed by the court of learned Additional Sessions Judge, Junagadh in Sessions Case No. 85 of 2003 dated 5-10-2007 is modified to the extent that original Accused 1 Pathubha is convicted for the offence punishable under Section 302 IPC and is sentenced to undergo imprisonment for life. The order regarding fine and default sentence is not disturbed qua original Accused 1. It is also clarified that punishment of imprisonment for life imposed upon original Accused 1 shall not mean imprisonment till last breath and that the State may grant the accused benefit of remission at the appropriate time. His conviction and sentence under Section 27 of the Arms Act is also confirmed.
Insofar as original Accused 2 Hemubha is concerned, his conviction is altered to one punishable under Section 304 Part I IPC instead of Section 307 read with Section 149 IPC. For conviction under Section 304 Part 1 IPC, original Accused 2 is sentenced to undergo imprisonment for ten years. The order regarding fine and default sentence is not disturbed qua original Accused 2. The jail report shows that original Accused 2 is on bail. His bail bonds stand cancelled and he is ordered to surrender to custody within a period of ten weeks from today.
Out of original Accused 3 to 20, original Accused 5, original Accused 13 and original Accused 16 have expired. Therefore, the appeals stand abated qua the said three accused persons.
Insofar as the remaining accused persons are concerned viz. original Accused 3, 4, 6 to 9, 11 to 12 and 14, 15 and 17 to 20, their conviction is altered to one punishable under Section 323 IPC without the aid of Section 149 IPC. For conviction under Section 323 IPC, the sentence already undergone by each of the accused persons is ordered to be treated as sufficient sentence and each of the accused is ordered to pay a fine of Rs 2500. None of the accused person is required to undergo any further sentence in respect of the offence in question. The above accused persons are on bail and hence, their bail bonds stand cancelled and surety, if any, stands discharged.
Rest of the impugned judgment and order remains unaltered.
(III) Insofar as Criminal Appeal No. 1244 of 2007 is concerned, the judgment and order passed by the court of learned Additional Sessions Judge and Fast Track Court, Junagadh in Sessions Case No. 53 of 2004 dated 5-10-2007 is modified whereby, each of the five accused persons viz. original Accused 1 to 5, is convicted under Section 323 IPC without the aid of Section 149 IPC. Their conviction, accordingly, stands altered to one punishable under Section 323 IPC. For conviction under Section 323 IPC, the sentence already undergone by each of the five accused persons is ordered to be treated as sufficient sentence and each of the accused is ordered to pay a fine of Rs 2500. None of the accused person is required to undergo further sentence in respect of the offence in question. The above accused persons are on bail and hence, their bail bonds stand cancelled and surety, if any, stands discharged.
Rest of the impugned judgment and order remains unaltered.”
11. The present appeal has been filed before us by way of special leave petition, by two of the above convicts, namely, Pathubha Govindji Rathod and Hemubha Govindji Rathod.
12. The only point pressed and argued before us in this appeal is that the courts below have erred in law in not accepting the plea of private defence taken by Appellant 1. It is argued that Appellant 1-accused was assaulted with a knife and suffered the injury on the vital part, as such he has a right of private defence to save his person. It is further contended that charge relating to causing death of Natha Bhai with a firearm, even if proved, is covered by Exception 2 of Section 300 IPC.
13. We have considered the submissions of the learned counsel for the appellants. Exception 2 to Section 300 IPC reads as under:
“Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.”
14. It is not disputed in the present case that there are cross-versions of the incident, and cross-complaints were lodged with the police. It is also not disputed that in both the cases police submitted charge-sheets against both set of accused. It is also evident from the record that both Sessions Cases Nos. 85 of 2003 and 53 of 2004 resulted in conviction on conclusion of trial by the Additional Sessions Judge, Junagarh. Considering the number of persons involved in the incident it can be safely said that it is a case of free fight between two groups of people. It is settled principle of law that in the cases of free fights the accused are to be fastened with individual liability taking into consideration the specific role assigned to each one of them, and normally right of private defence is not available in such cases unless circumstances in a given case warrant so.
15. A person faced with injury with a deadly weapon to his life cannot be expected to weigh in balance the precise force needed to avoid danger. Referring to Bhanwar Singh v. State of M.P. (2008) 16 SCC 657, this Court, in State of Rajasthan v. Manoj Kumar (2014) 5 SCC 744, has observed as under:
“15.3. In Bhanwar Singh v. State of M.P. (2008) 16 SCC 657 it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death; and if the court were to reject the said plea, there are two possible ways in which this may be done i.e. on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2 IPC.”
16. In Mohd. Khalil Chisti v. State of Rajasthan (2013) 2 SCC 541, this Court has observed in para 42 as follows:
“42. The analysis of the materials clearly shows that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts.”
17. No doubt normally the right of private defence is not available to either of the parties in incidents of group fighting, but that is not a rule without exception. In the case at hand, we have a special circumstance where the injured person (Appellant 1) who was given 2 cm × 2 cm × 1.5 cm deep knife-blow on his back (scapular region) has retorted by using licensed firearm, and killed one of his rivals in the same incident. The appellant-accused Pathubha Govindji has taken plea of private defence right from the beginning of the trial. From the judgment of the trial court also, it is clear that the plea of private defence was taken by Appellant 1. Considering the facts and circumstances of the present case and evidence on record, it is evident that Appellant 1-accused Pathubha Govindji Rathod who suffered knife injury in the incident has caused death of one of the deceased by firing several shots thereby exceeding the right of private defence. Injuries suffered by both the sides are on record.
18. In the above circumstances, from the evidence, as discussed above, we are inclined to accept the argument that it is a case of culpable homicide not amounting to murder covered under Exception 2 of Section 300 IPC. Therefore, after weighing the submissions of the learned counsel for the parties and going through the papers on record, we are of the opinion that appeal of Appellant 1-accused deserves to be allowed partly. Accordingly, the appeal is partly allowed and the conviction and sentence recorded against Appellant 1-accused under Section 302 IPC read with Section 149 IPC is set aside. Instead he (Appellant 1-accused Pathubha Govindji Rathod) is convicted under Section 304 Part I IPC and sentenced to imprisonment for a period of ten years and directed to pay a fine of Rs 5000, in default of payment of fine he shall undergo simple imprisonment for a further period of six months. He is reported to have undergone nine years and six months of imprisonment. He shall serve out unserved part of the sentence. The conviction and sentence recorded against Appellant 2-accused Hemubha Govindji Rathod under Section 304 Part I read with Section 149 IPC, does not require any interference.
19. The appeal stands disposed of.